Chipping: could a high tech dog tag find future American MIAs?

• Author: Sanders, Marren
• Position: Missing in action, status of American soldiers presumed missing, injured, captured or dead

INTRODUCTION

In the early morning hours of January 17, 1991, the first day of Operation Desert Storm, U.S. Navy fighter pilot Scott Speicher took off with his squadron from the deck of the USS Saratoga and was never heard from again. (1) The thirty-three-year-old lieutenant commander, husband, and father of two was declared the war's first combat death when he failed to check in, after witnesses reported seeing an explosion that could have been his plane, brought down by enemy fire. (2) Ten years later, in January 2001, Navy officials announced that Speicher's status had been upgraded from killed to missing in action (MIA) when intelligence reports suggested that he might have survived the crash. (3)

In October 2002, in an unprecedented move, Speicher's status was changed again, this time to missing/captured. (4) Navy investigators concluded from further intelligence assessments that he would have had at least an eighty-five percent chance of surviving the 1991 crash. (5) Today, the fate of Speicher remains unknown. (6) For future MIAs, however, technology may hold the key to unlocking the answers their families seek.

This note examines subdermal microchip implantation and its potential application for tracking members of the U.S. military. (7) Part I defines subdermal microchips including the state of the art, and discusses the ways they are currently utilized. Part II analyzes the legal, moral and ethical implications of implants replacing traditional methods of identifying armed forces personnel. Applying the Constitution and military case law and statutes, including the Military Rules of Evidence, Part II considers how chipping, if implemented, could impact the following areas: enlistment and identification, discharge and administrative separation, constitutional concerns, effects on military criminal justice, and tort claims involving use of the chip. Part III examines whether subdermal microchip implantation of U.S. Military personnel could exist in the near future and whether chipping might solve the mystery of future American MIAs.

1. FACT OR FICTION

   1. Overview

      In a recent award-winning movie, the protagonist was recruited by the CIA and injected with a radioactive isotope that revealed a unique security code when bathed in the light of a particular scanner. (8) While the microchip implanted in the character John Nash turned out to be a figment of his beautiful mind, today chipping is a reality. (9) Currently used to locate lost pets, identify laboratory animals, and manage wildlife, fish, and livestock, microchips have now been adapted for use in humans. (10)

      In 2002, fiction became fact when a Florida family was implanted with the VeriChip[TM], a device that serves a function similar to a MedicAlert[R] bracelet. (11) The announcement of a human chipping worried privacy advocates and ethicists who felt that use of microchips for "good" hardly justified their potential for abuse. (12) In response, the makers of VeriChip[TM], Applied Digital Solutions, Inc. (ADSX), temporarily removed all references to human implantation from its website and literature in 2001 to deflect criticism from concerned parties, including civil libertarians and religious groups. (13) There are several web sites dedicated to preaching the evils of chipping. (14) In the Christian community, chipping is likened to the Mark of the Beast described in the New Testament. (15)

      He also forced everyone ... to receive a mark on his right hand or on his forehead so that no one could buy or sell unless he had the mark, which is the name of the beast or the number of his name. ... [There will be] no rest day or night for those who worship the beast and his image, or for anyone who receives the mark of his name. (16)

      Some believe that it is only a matter of time until people are routinely "scanned like a box of Wheaties." (17) The idea of having this technology imbedded under one's skin is "cool" for some, (18) while for others, the thought of being chipped makes their skin crawl. (19) Visions of cyborgs, government surveillance and high-tech slavery abound. (20)

   2. The Technology

      Science fiction and recent news reports might lead one to believe that the Big Brother regime portrayed by George Orwell in his novel 1984 is upon us, however, a chip that can monitor the location of humans is only in its early developmental stages. (21) Applied Digital Solutions, Inc. (ADSX) and its subsidiaries currently own several technologies that may make the military classification MIA a thing of the past. (22) First, Destron Fearing Corporation (Destron), a subsidiary of ADSX, created a microchip for animals. (23) The chip is about the size of a grain of rice and contains a unique alphanumeric identification code. (24) It is coupled with an antenna and sealed in an inert glass capsule. (25) Injected under the skin using a procedure similar to a routine vaccination, the chip remains inactive until read with a scanner that sends a magnetic field and low radio frequency signal. (26) The chip is powered by the signal and sends its identification code back to the scanner. (27) The identification number can be linked to a database containing information about the animal or the chip can merely verify the animal's identity. (28)

      The chip is held in place by a patented anti-migration cap called BioBond[R].29 This porous, polypropylene polymer sheath is attached to the chip and promotes the development of fibrocytes and collagen fibers around the chip, which impedes movement so that the chip stays in place. (30)

      Digital Angel Corporation (DAC), the parent company to Destron and subsidiary of ADSX, combines the Destron chip with wireless, Global Positioning Systems (GPS) for commercial uses ranging from medical monitoring to tracking pets and assets. (31) For medical monitoring, the chip is embedded in a rechargeable wristband with biosensors that can transmit the pulse, blood pressure, and temperature of the wearer, as well as his location, to within seventy-five feet. (32) The information is transmitted to a monitoring center and can then be sent to any wireless address, including a text pager or Personal Digital Assistant (PDA). (33) For pets, the chip is part of the animal's collar and includes an automatic alert when the animal moves beyond preset boundaries. (34)

      In 1997, DAC received a patent for a personal tracking and recovery system consisting of a miniature digital transceiver. (35) In 1999, ADSX acquired the patent rights for the transceiver, which it called Digital Angel[TM]. (36) To be effective for the recovery of military personnel, the transceiver would need to combine the size of the Destron microchip with the capability of the DAC wristband. The first step toward this goal was introduced in 2000 with the VeriChip[TM]. (37) Aggressively marketed by the company for emergency, healthcare, and security applications, the device functions like the Destron identification chip, except that it is implanted in humans, not animals. (38) The next step came in 2003 when ADSX announced that it had a working prototype of a subdermal GPS personal location device (PDL) that is about the size of a pacemaker. (39)

      ADSX continues to work on enhancements for the PDL, including reducing the size of the device. (40) Reduction in size to that of the VeriChip[TM], together with another ADSX product, Thermo Life[TM], could turn fiction into fact: an implanted microchip capable of identifying and monitoring human beings. (41) In addition, the ADSX business unit, Government Telecommunication, Inc. (GTI), designs, deploys, and maintains voice, data, and video telecommunications networks for federal government agencies. (42) ADSX is a contractor under the Department of Defense (DoD). (43)

2. LEGAL, MORAL AND ETHICAL IMPLICATIONS OF CHIPS REPLACING TRADITIONAL METHODS OF IDENTIFYING U.S. MILITARY PERSONNEL

   Article I, Section 8 of the United States Constitution grants Congress the power to raise and support armies, to provide and maintain a navy, to call out the militia to execute the laws of the Nation, and to suppress insurrections and repel invasions. (44) To fulfill its duties under Article I, Congress established four basic routes into military services: enlistment, officer appointment, activation of reservists, and conscription, which was later replaced with selective service. (45)

   1. Enlistment and Identification in the Military (46)

      Enlistment in the military is a contractual obligation and the enlistee's status changes from that of a civilian to that of a member of the military. (47) The typical enlistment agreement of armed forces personnel is a six to eight year service obligation, generally divided between an active duty tour and a period of reserve service. (48) As a member of the military, a soldier assumes new rights and duties and his relations to the State and the public are changed. (49) By signing the enlistment contract, the enlistee agrees to obey all lawful orders, to perform all assigned duties, to be subject to the military justice system and to be tried by military court-martial. (50) In addition, the enlistee will be required, upon order, to serve in combat or other hazardous situations. (51) The enlistment contract states that the laws and regulations governing military personnel may change without notice, such changes potentially affecting service members regardless of the provisions of the enlistment document. (52)

      If chipping is initiated as part of enlistment in the military, must the agreement explicitly state that implantation is a condition of enlistment? Courts have regularly held that enlistment does not simply create a contractual duty, but also changes the new recruit's status to a member of the military. (53) While civilian personal service contracts are not normally enforceable, (54) a number of military cases have emphasized the contractual components of enlistment agreements. (55) Frequently legal cases involve plaintiffs...